Contraceptive mandate delay granted

The Obama administration cannot enforce the Affordable Care Act’s contraception coverage requirements against a Catholic nuns’ order for the time being, if the nuns tell the government they object to providing that coverage, the Supreme Court ruled Friday afternoon.

The Supreme Court’s action could defuse for the time being a showdown between religious employers and the federal government over the procedures for providing contraceptive coverage to employees of hospitals, nursing homes and other entities run by religious groups.

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In a one-page order issued by the court without any noted dissent, the justices said that — at least for now — the Little Sisters of the Poor did not have to follow the procedure the Obama Administration established for religious groups to escape complying with ACA-related rules requiring that employer-provided coverage include contraceptives.

Instead of filling out a government-issued form, the nuns can simply send the Department of Health and Human Services a written notice that the order is a religious organization with “religious objections to providing coverage for contraceptive services.”

The nuns, who run nursing homes, had refused to fill out the federal exemption form, arguing that doing so would violate their religious beliefs by triggering the provisions of contraceptives by others.

Lawyers for the Little Sisters hailed the court’s order and said the nuns will take the option the justices outlined. Their actual appeal of the requirement is pending in the U.S. Court of Appeals for the 10th Circuit.

“This order grants all the protection that the Little Sisters of the Poor and the other organizations in the case need while the courts are deciding their case,” said Kevin Walsh, a University of Richmond Law professor and an attorney for the nuns. “We are happy to satisfy the condition in the Supreme Court’s order, which is to say something that we have been saying from the beginning of the case and that the government already knows.”

Daniel Blomberg, a Becket Fund attorney also representing the Little Sisters, said the Supreme Court’s requirement to send a note to HHS demonstrates that the government’s form amounts to a “permission slip” to access to contraception.

“The Supreme Court saw through it,” Blomberg said. “They’ve given an example of how it can be done nationwide.”

Two religious health care benefit providers – Christian Brothers Services and Christian Brothers Employee Benefits Trust – joined the Little Sisters in their suit. The order applies to them as well, meaning the ruling could extend to more than 400 non-profit organizations.

The Justice Department issued only a brief response to the order. “As the order indicates, this injunction applies only to the plaintiffs and is not a ruling on the merits of their case,” a spokesperson said. “And plaintiffs have always been eligible for an accommodation from the contraceptive coverage requirement.”

Supporters of the contraception coverage requirement said they were not overly concerned that the ruling signals where the court may head if and when the case works its way back to the Supreme Court.

“Although [we are] disappointed in this temporary order, the court emphasized that the order ‘should not be construed as an expression of the court’s views on the merits,’” said Sharon Levin, director of federal reproductive health policy at the National Women’s Law Center. “We are confident once the merits in this case are fully considered by the 10th Circuit, that it will once again uphold the birth control regulations as it did in December.”

If the nuns send a notice meeting the Supreme Court’s requirements, the government will be blocked from taking any enforcement action against the religious group at least until a federal appeals court acts on the nuns’ appeal, the court’s order said.

The justices also said in Friday’s order that the Little Sisters could get relief pending the outcome of their appeal without sending a copy of their opt-out notice to their insurance carrier — something the religious group said it would not do because of concerns that could also lead to employees receiving contraceptive coverage.

Last month, a federal district court judge in Colorado ruled that it would “not substantially burden” the nuns’ religious beliefs to complete the government form or send it to the firm that administers their insurance.

The Denver-based 10th Circuit Court refused to stay the nuns’ duty to comply with the regulations, which took effect Jan. 1.

On New Year’s Eve, Justice Sonia Sotomayor gave the religious order an emergency stay while the court considered how to respond to the group’s application for a stay pending appeal.

The Supreme Court has not yet agreed to hear the Little Sisters’ case or any other brought by a non-profit religious group challenging the Obamacare contraceptive regulations.

However, the justices are scheduled to hear arguments in March in a pair of cases in which for-profit businesses are seeking to escape the coverage requirements because the owners of the firms say providing such coverage would violate their religious beliefs.